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HomeMy WebLinkAboutRes.3640.12-16-2024 BILL NO. 24-139 RESOLUTION NO. 1 y A RESOLUTION AUTHORIZING THE CITY MANAGER TO EXECUTE THE SECOND AMENDMENT TO TRANSPORTATION PROJECT AGREEMENT WITH SOUTH K TRANSPORTATION DEVELOPMENT DISTRICT AND SOUTH K, INC. , FOR TRANSPORTATION IMPROVEMENTS WITHIN THE SOUTH K TRANSPORATION DEVELOPMENT DISTRICT BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS : WHEREAS, on October 11, 2017, South K, Inc. ("Developer") and Rhodes Development Company, L.L.C . filed a petition for Formation of a Transportation Development District with the Circuit Court of Cape Girardeau County, Missouri pursuant to the Missouri Transportation Development District Act, Sections 238 . 200 to 238 . 280, RSMo . , as amended ("TDD Act") ; and WHEREAS, pursuant to Section 238 . 225 of the TDD Act, the City of Cape Girardeau ("City") as an applicable local transportation authority is required to approve any portion of the Transportation Project not intended to be merged into the state highways and transportation system ("Local Transportation Project") ; and WHEREAS, on or about February 5, 2018, the City adopted Resolution No . 3145, whereby the City approved the Local Transportation Project and authorized the execution of a Transportation Project Agreement ("Project Agreement") , which was executed by all of the parties on or about March 20, 2018; and WHEREAS, on or about October 3, 2022, the City adopted Resolution No. 3510, whereby the City approved the First Amendment to the Transportation Project Agreement ("Project Agreement") , which was executed by all of the parties on or about October 6, 2022; and WHEREAS, the City, as an applicable local transportation authority, desires to execute the Second Amendment to Transportation Project Agreement amending the Project Agreement in substantially the form attached hereto to evidence its approval of the applicable portion of the Local Transportation Project, as required by Section 238 . 225 of the TDD Act; NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS : Article 1 . The City Council hereby finds and determines that it is necessary and desirable to enter into the Second Amendment to Transportation Project Agreement in connection with the construction of the Local Transportation Project. The City Manager is hereby authorized and directed to execute the Second Amendment to Transportation Project Agreement on behalf of the City. The Second Amendment to Transportation Project Agreement shall be in substantially the form attached hereto, which Second Amendment to Transportation Project Agreement is hereby approved by the City Council, with such changes therein as shall be approved by the officer of the City executing the same, such approval to be conclusively evidenced by such officer' s execution of the Second Amendment to Transportation Project Agreement. Article 2 . The officers of the City are hereby authorized and directed to execute all documents and take such actions as they may deem necessary or advisable to carry out and perform the purposes of this Resolution . Article 3 . This Resolution shall be in full force and effect from and after its passage by the City Council . PASSED AND ADOPTED THIS Ie DAY OF 2024 . C Stacy Kind r, Mayor ATTEST : Traci Weissmueller, Deputy City Clerk G �G *CUs trxao SEAL SECOND AMENDMENT TO TRANSPORTATION PROJECT AGREEMENT THIS SECOND AMENDMENT TO TRANSPORTATION PROJECT AGREEMENT (this "Amendment") is entered into as of this (day of ft y 12024, by and among the SOUTH K TRANSPORTATION DEVELOPMENT DISTRICT, a political subdivision and transportation development district duly organized and existing under the laws of the State of Missouri (the "TDD"), SOUTH K, INC., a Missouri corporation (the "Developer"), and the CITY OF CAPE GIRARDEAU, MISSOURI, a home rule city and political subdivision duly organized and existing under its charter and the Constitution and laws of the State of Missouri (the "City"). (The City, the TDD, and the Developer are collectively referred to herein as "Parties," and individually as a "Party," as the context so requires.) Capitalized terms not defined herein shall have the meanings given to such terms in the below -defined Project Agreement. WHEREAS, on October 11, 2017, the Developer and Rhodes Development Company, L.L.C. filed a Unanimous Petition for Formation of a Transportation Development District with the Circuit Court of Cape Girardeau County, Missouri (the "TDD Petition") pursuant to the Missouri Transportation Development District Act, Sections 238.200 to 238.280, RSMo., as amended (the "TDD Act"); WHEREAS, the TDD Petition describes a transportation project generally consisting of various street and parking lot improvements (as further described in the TDD Petition, the "Transportation Project"); WHEREAS, pursuant to Section 238.225 of the TDD Act, the City, as the applicable "local transportation authority," is required approve the portion of the Transportation Project that will not be merged into the state highways and transportation system (the "Local Transportation Project"); WHEREAS, on or about February 5, 2018, the City adopted Resolution No. 3145, whereby, among other things, the City approved the Local Transportation Project and authorized the execution of a Transportation Project Agreement (the "Original Project Agreement" and as amended by the First Amendment and this Amendment, the "Project Agreement"); WHEREAS, the Original Project Agreement authorized the TDD to reimburse the Developer for certain eligible costs advanced by the Developer concerning the Transportation Project and formation of the TDD, up to a maximum of $869,670.70 from the TDD's sales tax revenues (such amount, as increased by the hereafter -defined First Amendment, the "Max Budget"); WHEREAS, on or about October 3, 2022, the City adopted Resolution No. 3510, whereby the City approved the First Amendment to the Transportation Project Agreement (the "First Amendment"), which provided for additional work within the scope of the Local Transportation Project and increased the Max Budget to $1,919,670.70; WHEREAS, the Developer desires to install handicap ramp, sidewalk and steps at or near the building known as the Sherwin Williams building located at 211 South Kingshighway and replace portions of the asphalt parking lot with concrete (the "Additional Work"), which Additional Work is within the scope of the Local Transportation Project; WHEREAS, the Parties desire to increase the Max Budget to accommodate the Additional Work; WHEREAS, pursuant to Section 238.225 of the TDD Act, the City, as the applicable "local transportation authority," is required to approve the plans or specifications with respect to any Local Transportation Project; and WHEREAS, the Developer, the City and the TDD desire to enter into this Amendment to: (i) acknowledge the general economic benefit and value to the community created by the Transportation Project (including the Additional Work) and to provide for public access within the Transportation Project on the terms set forth herein; (ii) memorialize the agreement of the City, acting in its capacity as local transportation authority (as defined in the TDD Act), regarding development and future maintenance of the Local Transportation Project (including the Additional Work); and (iii) increase the Max Budget. The City acknowledges that it is entering into this Agreement for the overall benefit of the community. AGREEMENT NOW, THEREFORE, for and in consideration of the premises, and the mutual covenants herein contained, the Parties agree as follows: Section 1. Approval of Additional Work. The City, as the applicable local transportation authority under the TDD Act, hereby approves the Additional Work. The Parties agree that the Additional Work shall be deemed a pail of the Local Transportation Project. The Additional Work is not intended to be merged into the state highways and transportation system under thejurisdiction of the Missouri Highway and Transportation Commission. Notwithstanding the foregoing, the approval of the Additional Work herein does not relieve the Developer of any obligation to obtain permits or other approvals under any generally applicable City ordinance or regulation relating to the design, construction and maintenance of the Additional Work. Section 2. Max Budget. Section 3 of the Original Project Agreement is hereby amended by deleting the reference to $1,919,670.70 and inserting $2,369,670.70 in lieu thereof. Section 3. Miscellaneous 3.1 Entire Agreement. This Amendment and the Agreement embody the entire agreement among the parties respecting the subject matter hereof and supersede all prior agreements, proposals, communications and understandings relating to such subject matter. The terms of this Amendment shall be considered a part of the Agreement as if fully set forth therein. All references to the "Agreement' in the Agreement shall be deemed to mean the Original Project Agreement, as amended by the First Amendment and this Amendment, and as may be further amended from time to time by written instrument of the Parties. 3.2 Binding Effect. This Amendment shall be binding upon the parties hereto and their respective successors and permitted assigns. 3.3 No Other Change. Except as expressly modified herein, the Agreement remains in full force and effect. In case of a conflict between the terms of this Amendment and the Agreement, the terms of this Amendment control. 3.4 Counterparts. This Amendment may be signed in one or more counterparts and by electronic (e.g., facsimile, email) signature. Ira 3.5 City Fees. The Developer shall, simultaneously with the execution of this Amendment, reimburse the City for all costs, including attorney fees, incurred in connection with the negotiation and execution of this Amendment. [The remainder of this page is intentionally left blank; signature pages and exhibits follow.] -3- IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of the day and year first above written. SOUTH K TRANSPORTATION DEVELOPMENT DISTRICT Printed name: Scott M Rhodes Title: Chairman of the Board SOUTH K, INC. By: Printed name: Scott M Rhodes Title: Vice President CITY OF CAPE GIRARDEAU, MISSOURI By: Printed n e: Kenneth Haskin Title: City Manager 4- MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION Although the Additional Work shall not be merged into the state highways and transportation system under the jurisdiction of the Missouri Highway and Transportation Commission (the "Commission"), the Commission hereby approves the Additional Work (and the costs thereof) in accordance with Section 238.257.4, RSMO. Assistant Chief Engineer Title Attest: (SEAL) 114411 i; w41 I �P:.t: - .� Approved as to Form: Commission Counsel